Lifetime Planning Ennurement

Moycullen1

I was wondering if anyone has knowledge of anyone successfully challenging a life time ennurement to have it converted to a fixed period ennurement. Broadly speaking I have no issue with the principal of a fixed period ennurement and while I recognise that it does not allow for the changing circumstances of applicants the mechanism is there for people to apply to councils to have it amended if their circumstances are such that they need to be released from the condition. It does however strike me that a lifetime ennurement as is the case with my condition is extremely limiting and from what I have been reading contravenes my basic rights to hold property.

sydthebeat

Can you quote the condition please?

Moycullen1

sydthebeat wrote: »

Can you quote the condition please?

'Use of the proposed house shall be restricted to use as a dwelling by the applicant, applicants family, heirs, executors and administrators or persons involved in agricultural related activities in this rural area, unless otherwise agreed by the Planning Authority'

JimmyMW

Moycullen1 wrote: »

'Use of the proposed house shall be restricted to use as a dwelling by the applicant, applicants family, heirs, executors and administrators or persons involved in agricultural related activities in this rural area, unless otherwise agreed by the Planning Authority'

I would defo challenge this as IMHO this condition would render this build un-mortgageable, normally these conditions only state validity for 7 years

Metric Tensor

I presume you filled in a housing need form in order to obtain the planning permission?

If you have a change in circumstances such that you need to live somewhere else then I'd approach the planners with support from s local councillor. If you have been living there for a considerable period there would probably be a genuineness to your case that would help.

If you have only recently built the house I'd guess that you're looking at a protracted and expensive battle to change a clause that doesn't affect you at the moment (assuming your housing need is still the same as it was when you applied).

Edit: This is assuming you have not just been granted permission in which case you can appeal the condition to An Bord Pleanala.

sydthebeat

is this a new application?? most inurment conditions these days are 7 year ones.

you can apply for planning permission to remove that condition, and / or replace it with a fixed year one.

id suggest you take legal advise on it from a solicitor that specialises in planning law.

Moycullen1

Councils issue a 'letter of comfort' to lenders stating the lender may, in the event of having repossessed the property, sell it without restriction.

I have been in the house for 15 years and I am still active in the local community. I would have to make a formal planning application to have the condition lifted but if I was aware of a ruling either in Galway or other areas which suggested lifetime ennurements were unconstitutional then it would be easier to deal with it in that way.

Metric Tensor

I disagree - the easiest way of doing it is via the council.

Any legal route involves solicitor's fees or barrister's fees getting official legal opinions put on paper.

Metric Tensor

In my opinion you would only go the legal route if the council have said no multiple times and you desperately need to sell the house.

darragh_1

This is especially an issue in Monaghan where if you want a house within 100m of a farm (regardless of who owns it), you will have a condition added to your grant of planning permission restricting occupancy of the house to the applicant and his/her heirs indefinitely. The wording from the Development Plan is:
"It should be noted that where planning permission is granted for a residential unit within 100 metres of an agricultural building(s) under the above and is located outside the defined settlement limits, a condition restricting occupancy to the applicant, members of their
immediate family and their heirs shall be attached to any grant of permission".
I think this is very harsh and I'm not aware of any challenges to it

Moycullen1

Metric Tensor wrote: »

In my opinion you would only go the legal route if the council have said no multiple times and you desperately need to sell the house.

I agree, I suppose i am just wondering if the lifetime version had been ruled to be unfair or illegal in which case it would just be a formality to have it lifted. Applying for planning would not be the end of the world just slow.

sydthebeat

Moycullen1 wrote: »

I agree, I suppose i am just wondering if the lifetime version had been ruled to be unfair or illegal in which case it would just be a formality to have it lifted. Applying for planning would not be the end of the world just slow.

It was challanged in europe but there was never a final ruling on it.

When questioned on it the irish government went back to europe with relaxed occupancy clauses (typically 7 years).

your situation seems to be from when the lifetime clause was being applied.

in my opinion it would be a very simple straightforward application to get that condition removed / altered.

Metric Tensor

I'm not even sure an application would be needed.

If you do need to move I'd be inclined to write to the planning department with proof that you need to sell the house (i.e. new job details or whatever) and ask them to write back to you confirming something of the effect of "we consider condition XX of planning application XX to have been sufficiently satisfied by X's residence in this dwelling from 2001-20xx and that this condition does not preclude the sale of the dwelling to an unrelated party" .... or some such wording - you could spend a bit more time on it than the 30 seconds I have spent.

Then get a councillor to follow it up and hassle some people.

I think it would definitely be worth a try before going to a full planning application - of course it would have a thousand times more weight if you actually needed to move - if you are just doing it to protect your own interests you may have to go the planning application route and you may end up with some new conditions applied! (e.g. 7 years from this date!)

Poor Uncle Tom

Metric Tensor wrote: »

I'm not even sure an application would be needed.

If you do need to move I'd be inclined to write to the planning department with proof that you need to sell the house (i.e. new job details or whatever) and ask them to write back to you confirming something of the effect of "we consider condition XX of planning application XX to have been sufficiently satisfied by X's residence in this dwelling from 2001-20xx and that this condition does not preclude the sale of the dwelling to an unrelated party" .... or some such wording - you could spend a bit more time on it than the 30 seconds I have spent.

Then get a councillor to follow it up and hassle some people.

I think it would definitely be worth a try before going to a full planning application - of course it would have a thousand times more weight if you actually needed to move - if you are just doing it to protect your own interests you may have to go the planning application route and you may end up with some new conditions applied! (e.g. 7 years from this date!)

Unfortunately the wording of any letter from the LA will have to satisfy the legal team for any buyer or lending institution for any potential buyer. For the most part this means an absolute removal of the condition. This can only be done by an application for Planning permission, as far as I'm aware.

Also the application for the removal of the enurement clause has to be part of a larger application and not purely on it's own, apparently.

Metric Tensor

Poor Uncle Tom wrote: »

Unfortunately the wording of any letter from the LA will have to satisfy the legal team for any buyer or lending institution for any potential buyer. For the most part this means an absolute removal of the condition. This can only be done by an application for Planning permission, as far as I'm aware.

I know that but I've seen things a lot loser than that accepted ..... ;-) .... As you said though it would depend on the purchaser!

Also the application for the removal of the enurement clause has to be part of a larger application and not purely on it's own, apparently.

I didn't know that! That seems harsh - I wonder what the legal reasoning is for that.

Poor Uncle Tom

Metric Tensor wrote: »

I wonder what the legal reasoning is for that.

The enurement clause on its own is not 'development' as there is nothing 'material' in it, therefore it can't be the sole focus of an application for planning and development permission. However, it can be treated ancillary to another application, say for retention of a porch, change of boundaries, etc.

But then it can be argued that if you take this debate to its conclusion you get a catch 22.

ruthie23

Galway county council development plan has a section on enurments that states if you have a life Long enurememt you need to lodge an a planning application on to vary a condition and they will reduce it to 7 years . I think you could do this yourself . A letter and the application form and pay the fee

ruthie23

ruthie23 wrote: »

Galway county council development plan has a section on enurments that states if you have a life Long enurememt you need to lodge an a planning application on to vary a condition and they will reduce it to 7 years . I think you could do this yourself . A letter and the application form and pay the fee

ruthie23

[quote=ruthie23;101477370

Metric Tensor

ruthie23 wrote: »

Galway county council development plan has a section on enurments that states if you have a life Long enurememt you need to lodge an a planning application on to vary a condition and they will reduce it to 7 years . I think you could do this yourself . A letter and the application form and pay the fee

Fair play - that's exactly what the OP is looking for!

ruthie23

It's on the end of Page 64- life long enuremments are said To expire after 7 years but you have to lodge application in order for this to come into effect . The development plan is on the planning section of their website

Moycullen1

ruthie23 wrote: »

It's on the end of Page 64- life long enuremments are said To expire after 7 years but you have to lodge application in order for this to come into effect . The development plan is on the planning section of their website

Thank you very much Ruthie23, that is some seriously skilled investigative work. I wonder if the clause applies to planning granted within the period of the plan or applies to previously granted planning permission. One way or the other it gives me somewhere to start. Again good work, I owe you a pint!

ruthie23

I think it would apply to any planning that has a life time enurement regardless of when planning was granted . Life time enurements are too restrictive as they breach ppls freedom of movement. Perhaps look up previous planning files online and find a case where somebody varied a condition of the planning and follow what they did .

ruthie23

Had a look online . If you are in the house more than 7 years produce evidence - bills etc and ask for it to be removed . If you are less than 7 years ask for it to be varied - so that when you are 7 years in the house it will expire .

celticbhoy

Just researching this topic myself as I am interested in buying a house in Galway but the vendor had a lifetime enurement clause slapped on the property after he looked for retention on a garage.

I see from this doc
[URL="file:///Users/ruaidhrihallinan/Downloads/GCDP%202015-2021%20%20App%20II%20of%20NIR%20In%20Support%20of%20the%20AA.pdf"]
(APPENDIX II OF NATURA IMPACT REPORT IN SUPPORT OF THE APPROPRIATE ASSESSMENT OF THE
Galway County Development Plan 2015-2021 IN ACCORDANCE WITH THE REQUIREMENTS OF
ARTICLE 6(3) OF THE EU HABITATS DIRECTIVE )[/URL]

One of the objectives states:

Objective RHO 13-Lifetime Enurement Clause
Lifetime enurement clauses will be considered to have expired after a period of seven
years of full time occupancy by the applicant. Actual removal of the enurement clause
will have to be established by a planning application.


So it seems that they can be lifted, or at least reduced to 7 years.

My next question is if it can be sold, and the purchasers inherit the clause (which I have seen in many cases in the past)

Metric Tensor

He looked for permission to retain a garage and one of the conditions was a lifetime enurement clause on his house?

I think he would have had a VERY strong case for a first party objection to ABP.

Metric Tensor

What is the wording of the clause?

Poor Uncle Tom

celticbhoy wrote: »

Yeah, its a crazy situation.
The engineer that was supposed to just get retention on the garage at the time, sent in a whole new planning application so that's how the mess started. The person dealing with the application is said to have lacked experience too but once the enurement went on it was binding. A sad case really.
My question is if the house can still be sold in light of the the objective I quoted above, and we take on the clause?

Do you mean an application for the retention of the entire building instead of just the garage?

celticbhoy

From what I know from talking to the vendor, and from seeing the planning application, there was another application sent in for revised boundaries and retention of a garage, but there was a mix up and retention of the complete dwelling house was included too (even though it already had planning and was built).

There is a document relating to the enurement that is restricted viewing, but the exact text of the enurement clause on the C3 is as follows:

Use of the proposed house(s) shall be restricted to use as a house by the applicant, applicant's family, heirs, executors and administrators or persons involved in agricultural or related activities, returning immigrants or those with an essential housing need in this rural area, unless otherwise agreed by the Planning Authority. No development shall be commenced until an agreement embodying a provision to that effect has been entered into the Planning Authority pursuant to Section 47 of the Planning & Development Act 2000.
The period of restriction shall have effect from the date of first occupation of the house.

Reason:
To ensure that development in the area in which the site is located is appropriately restricted.

celticbhoy

We live in the area for 6 years, so are wondering is there a way to circumnavigate or meet the criteria in the clause?

Metric Tensor

Are you involved in agriculture related activities? If so it seems that you can buy it and live in it as is.

If not - you're most likely avenue is that you have an "essential housing need in the area" - this would normally be agreed a planning stage with the LA by submitting the various evidences. The wording of this would seem to suggest if you have a housing need you don't need it to be "otherwise agreed" with the planning authority - but I can't see how you would prove housing need to their satisfaction without engaging with them.

The way I see it is this is going to be the house you live in for a long time and probably the largest asset you will own. I wouldn't risk purchasing without explicit proof from the LA that they accept you as a suitable candidate for the ennurement clause. It's just not worth the risk.

Because of this clause there will not be a clamour of people to purchase. Make the vendor sort it out - ideally by requesting that it be removed by way of a new application.

shelly306

Hi everyone, I know this thread is a few years old but experiencing an issue with a lifetime enurement clause with a house we're sale agreed on from what we understand, the vendors only contacted the council to lift this last week, and I'm just wondering how long this would usually take (that is if approved..) thanks in advance!

sydthebeat

shelly306 wrote: »

Hi everyone, I know this thread is a few years old but experiencing an issue with a lifetime enurement clause with a house we're sale agreed on from what we understand, the vendors only contacted the council to lift this last week, and I'm just wondering how long this would usually take (that is if approved..) thanks in advance!

if its done by planing application, 12 weeks min...

if not, then theres no designated time scale.

shelly306

sydthebeat wrote: »

if its done by planing application, 12 weeks min...

if not, then theres no designated time scale.

thank you very much, I will have to put the pressure on to find out more